THE SUPREME COURT

Denham J.                                                                                                             117/02
McGuinness J.
Hardiman J.

IN THE MATTER OF THE EXTRADITION ACT, 1965 to 1994

Between:
OLIVER COLEMAN
                                                   Plaintiff/Appellant
and
PATRICK O’TOOLE
                                                         Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 28th              day of November, 2003 [Nem Diss].

	This is the plaintiff’s appeal from the judgment and order of the High Court (Ó Caoimh J.) of the 10th April, 2002.  The High Court refused the plaintiff relief pursuant to s.50(2)(bbb) of the Extradition Acts 1965 to 1994, in circumstances which are set out below.  

Factual background.
	On the 9th June, 1989 a man called Hugh Raymond O’Gorman was very seriously assaulted in Leeds, Yorkshire, England.  

	The plaintiff in the present proceedings was charged with the offence of causing grievous bodily harm to Mr. O’Gorman, with intent to do him grievous bodily harm, contrary to s.18 of the Offences against the Person Act, 1861.  His trial was fixed for the 16th October, 1990 and the plaintiff was released on bail. From the affidavit evidence in this case, it appears that Mr. O’Gorman died some sixteen months after the assault on him, without recovering consciousness.  This occurred on the 12th October, 1990.  The plaintiff broke the conditions of his bail and did not attend for his trial on the 16th October.

	According to the plaintiff’s own affidavit:-
“… I did not attend my trial in the Crown Court in Leeds;  instead, I returned to Shannonbridge, Co. Offaly in 1990. I have lived in Shannonbridge, Co. Offaly since 1990”.
	It appears that the plaintiff was born in Shannonbridge in 1967 and has lived there most of his life.  He says that in about 1985 he went to Leeds where he lived with his uncle and subsequently with his father.  He says that since his return to Shannonbridge in the year 1990 he has lived there. He said that he has been “signing on” for unemployment benefit from July 1993 to May 1999, and from June 1999 until the 13th February, 2001.  

The pursuit of the plaintiff.
	It must be recorded that the evidence put before this Court as to steps taken to pursue the plaintiff following his absconding before his trial in Leeds is incomplete, confused, and at times self contradictory.  

From the affidavit of Michael Grubb, formerly a Detective Chief Inspector in Leeds, it appears that, following the plaintiff’s failure to attend court on the 16th October, 1990, he was placed on the (British) Police National Computer as an absconder.   Periodic checks were made with the Department of Social Security to see if claims were made by him in the United Kingdom, but these were consistently negative.  Mr. Grubb says that as part of his inquiries he made contact with Garda Headquarters in Dublin and was put in touch with a Garda William Judge whom he believed to be stationed in Shannonbridge and who was acquainted with the plaintiff’s family.  He was given the personal telephone number of Garda Judge, which he still retains.  He says that he contacted him on a number of occasions “over the following years” and was informed on each occasion that the plaintiff had not been sighted in the County Offaly area.  
	
	Diana McKenna, formerly a supervisor in the Leeds Warrants Office of the West Yorkshire Police also swore an affidavit.  She said that in or about October, 1998 she checked a file in relation to the plaintiff and noted that a warrant issued by the Crown Court in Leeds on the 16th October, 1990 was still outstanding.  She forwarded the papers to a detective constable to make further inquiries.  This was Detective Constable Hadley.  He says that having got the papers he recommenced inquires as to the whereabouts of the plaintiff and wrote to the Gardaí on the 22nd January, 1999. His inquiries led to him believe that the plaintiff was resident in Offaly.  On the 26th March, 1999 he swore an affidavit authenticating an arrest warrant for the plaintiff issued in Leeds Crown Court on that date.  It appears that the plaintiff was arrested on foot of that warrant on or about the 31st May, 1999.  

	The account offered by the Leeds Police is complicated by certain affidavits sworn by members of An Garda Síochána.  A retired guard, the above mentioned William Judge, swore an affidavit.  He said that he had been stationed in Ferbane, Co. Offaly for 25 years prior to his retirement in March 1993.  He recalled being contacted by telephone by an English policeman in relation to the plaintiff on two occasions in the early 1990s.  This man asked him if Oliver Coleman was at home.  Mr. Judge said he knew there was a Coleman family in Shannonbridge but he did not know if Oliver Coleman was there or not.  He says that he explained that he was stationed at Ferbane and Shannonbridge was eleven miles away.  In a further call he suggested that the caller should contact the Superintendent in Birr.  

	Mr. Judge says that he made some inquiries on foot of these contacts to establish whether or not Mr. Coleman was at home.   He said “I do not now remember the extent of such inquiries or the results thereof”.

	This position is further complicated by the fact that there was exhibited in these proceedings a letter from Jim Delaney of the Serious Crime Squad of the Garda Síochána dated the 24th October, 1990.  This was to Mr. Judge and related to the plaintiff.  It enclosed a photograph of the plaintiff and asked him to verify that “it is the same fellow we were talking about”.  Mr. Judge, however, has sworn that he never saw this letter and that he had never spoken to Jim Delaney.

	Aidan Corcoran is a guard stationed at Shannonbridge since October, 1988.  He said he had never received any written or telephonic communication from the English police in relation to the plaintiff.  However he says that about September, 1991 he “received information from an individual to the effect that Oliver Coleman might be wanted on a warrant in England”.  He telephoned Leeds Police Station and spoke to a Sergeant Verty whom he told that Mr. Coleman was resident in Shannonbridge.  He says however that he was told that the Leeds police had no interest in him.  He exhibited a station telephone log for the 26th September, 1991 recording a call to Leeds police on that date.  However, inquires by Detective Superintendent Hemsley of Leeds police says that none of the retired police officers who dealt with the case in Leeds could confirm that such a call was received and that no person with the surname “Verty” or any similar sounding name was ever engaged on the case or in the warrant department in Leeds.

The television programme.
	The affidavit of Mr. Coleman introduces an alternative explanation for the revival of the pursuit of him.  He says that in February, 1999 he was approached by one Roger Cooke, a journalist with Yorkshire Television who questioned him about the death of Hugh Raymond O’Gorman.   He approached him on a public road in Offaly.  Yorkshire Television subsequently broadcast a programme including some 5 ½ minutes dealing with the plaintiff on the 26th March, 1999.  The plaintiff says that “it was only as a result of Roger Cooke’s programme that these proceedings were commenced.  I believe there is no bona fide intention to prosecute me and that this application is only a public relations exercise”.   Separately, he claims that the programme is prejudicial.  

	Detective Constable Hadley says that the Roger Cooke programme was of no relevance to the decision to seek his extradition. He says that Mr. Cooke did not trace the plaintiff until February, 1999 which was some time after he, the Constable, had renewed his inquiries and made contact with the Gardaí.

	None of the witnesses were cross-examined with the result that the rather incomplete account which each side has put before the Court has not been fleshed out or tested.

The plaintiff’s contentions.
	The plaintiff claims that he is entitled to be released pursuant to s.50 of the Extradition Act, 1965 as amended.  The portions of this Section relied upon are as follows:-
(1)	A person arrested under this part shall be released if the High Court or the Minister so directs in accordance with this Section.

(2)	A direction under this Section may be given by the High Court when a court is of opinion that 

	(a)     – 

	(b)     –

	(bb)   –

	(bbb) –

	by reason of the lapse of time since the commission of the offence specified in the warrant… and other exceptional circumstances, it would, having regard to all the circumstances be unjust, oppressive or invidious to deliver him up under section 47…”.

	The plaintiff/appellant advances a number of grounds which he says are relevant to the application of the statutory provisions set out above to his case.  The points which were relied upon on the hearing of this appeal were:-
(a)	That there had been undue and unreasonable delay in proceeding with the application for extradition and that the plaintiff was “led to believe by reason of the lapse of time that the authorities in England were not pursuing the matter”.

(b)	He has been prejudiced by delay in that his solicitor in England has destroyed his files and will not be able to completely reconstitute them.  He says that “It is also possible that potential witnesses who might be favourable to me are no longer available”.

(c)	The report by Roger Cooke could be prejudicial to any trial. 

(d)	The extradition proceedings were only commenced as a result of Roger Cooke’s programme.  In the plaintiff’s view, there is no bona fide intention to prosecute him.

Relevant statutory criteria.
	It will be observed that paragraph (bbb) involves the following concepts:-
“(a)	The lapse of time,
(b)	and other exceptional circumstances,
(c)	such that having regard to all the circumstances,
(d)	It would be unjust, oppressive or invidious to deliver up the plaintiff under s.47”.

	The first two concepts are conjunctively, not disjunctively, expressed.   As a result of this, in my view, the lapse of time must itself be exceptional and there must be other circumstances, themselves exceptional, available to be considered under the Section.  These circumstances, of lapse of time and otherwise, must be placed in the context of the entire circumstances of the case.  Thus considered, they must be such as render it unjust, oppressive or invidious to deliver up the plaintiff, before relief can be granted.

	In MB v. Conroy [2001] ILRM 311, Keane C.J. considered the same sub-paragraph and noted the conjunctivity.   As a result of that, he said:-
“It follows that it is not sufficient for a plaintiff whose extradition would otherwise be justified to show that a significant period of time has elapsed since the commission of the offence referred to in the warrant… he must also satisfy the High Court that there are other exceptional circumstances which would render it unjust, oppressive or invidious to allow the extradition to proceed”.

	In Fusco v. O’Dea (No. 2) [1998] 3 IR 470 Denham J. said:-
“The Section requires that in addition to the lapse of time there be other exceptional circumstances, such as to enable the exemption to apply.  It is for the plaintiff to prove that the exemption applies on the balance of probabilities”.

	In Kwok Ming Wan v. Conroy [1998] 3 IR 527 the meaning of the phrase “lapse of time” is explored.  Hamilton C.J. cited with approval the words of Lord Edmund-Davies in Kakis v. Government of Cyprus [1978] 1 WLR 779 at 785:-
“… The answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression.   Thus, the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue may be left in some doubt if the only known fact related to the extent of the passage of time…”.

	Hamilton C.J. went on to hold that the Court is entitled to have regard to where the responsibility for the lapse of time lies since that factor may affect the Court’s conclusion as to whether it would be unjust oppressive or invidious to deliver up the person whose extradition is sought.

	Both in M.B. and in Kwok Ming Wan the question of what might constitute “exceptional circumstances” was addressed.  In the first of these cases it was held that the fact that the plaintiff had lived openly in Dublin was not in itself an exceptional circumstance and in Kwok Ming Wan it was held that the changes in the plaintiff’s family circumstances (he had married and had a number of children all of whom were very young) was equally not in itself an exceptional circumstance.  The factors which, on the individual facts of those cases, amounted to exceptional circumstances were the sudden and grave deterioration in the plaintiff’s health and the fact that the plaintiff had, while in Ireland, sought and received an extension of the validity of his passport from the requesting country, respectively.   

On uncontradicted medical evidence in M.B., the deterioration in health was such that his extradition would have grave implications for his health, and might pose a serious threat to his life.  

	In M.B. what was described as the inaction of the prosecuting authorities and the decline in the plaintiff’s state of health were found to be exceptional circumstances capable of rendering it oppressive or invidious to deliver him.  In Kwok Ming Wan, apart from the exceptional circumstance noted above in connection with renewal of his passport, relevant circumstances were held to include that the plaintiff had established a successful business and “used his freedom to alter totally his economic and family circumstances”.  These were amongst the factors militating against his being sent back to England to serve a sentence.

The present case.
	There is not a great deal of information about the plaintiff and his activities, either in 1989 or subsequently, on the affidavits.  It is clear that he has been unemployed for the bulk of the time which has elapsed since his return from Leeds.  He is unmarried but says that he has “entered into a long term relationship in the State”, and that he is the father of a child aged four.  There is no explanation (as there was in MB) as to why he absconded and no indication on his affidavits as to what his attitude to the outstanding charge is.  He says nothing which would enable the Court to form a view as to whether his ability to defend the case (if that is what he wants to do) has been impaired.  He says that his English solicitors would have destroyed their file after the recommended period of six years, but the exhibited correspondence makes it clear that they could reconstitute the file.  The applicant correctly points out that they could not reconstitute any instructions given by him at the time, or any statements of witnesses, but says nothing to suggest that documents of this nature existed at any time.  

	The applicant has not put in issue the averments of the English police officers as to their attempts to pursue him shortly after he absconded.  The most relevant of these statements is that of Detective Inspector Grubb who says that on inquiry in the early 1990s he was told that the plaintiff had not been sighted in the Co. Offaly area.  To the extent that this averment is called into question, it is by the affidavit of former Garda Judge.   It appears to me to be clear from the affidavits that this gentleman’s memory is defective.  He says that he never saw the letter from Jim Delaney of the Serious Crime Squad.  However, the letter refers to conversations with Mr. Judge.  Former Sergeant Peter Sullivan of Ferbane states that the letter was shown by him by Garda Judge and was answered by him.  He accounts for the presence of the letter as an exhibit in the present case by saying that he retained it and the attached photograph at Ferbane Garda Station “with other records of the Coleman family”.   He also says that Shannonbridge Garda Station was a sub-station of Ferbane. 

	William Judge states that he made certain inquiries about Oliver Coleman but cannot now remember what they were or what the result was.  In my view this is consistent with his having received the letter from Mr. Delaney and having forgotten it.  I agree with the learned trial judge that William Judge is inaccurate in his recollection.  There is simply no other explanation for the fact that a letter addressed to him is now in the records of Ferbane Garda Station other than that (as deposed by Sergeant Sullivan) Mr. Judge indeed received the letter and gave it to the sergeant in the circumstances described by the latter.  The photograph attached to the letter is an English police photograph.  The date of the letter from the Serious Crime Squad in Dublin to William Judge is the 24th October, 1990.  The only reasonable inference that can be drawn from these facts, in my view, is that the Leeds police had contacted Garda Headquarters in Dublin, and the latter had contacted Ferbane Garda Station, within eight days of the plaintiff’s non-attendance for his trial in Leeds Crown Court.  I cannot regard that as a dilatory response.

	I am unimpressed by the argument that the English police should have then contacted Shannonbridge Garda Station.  This is a sub-station of Ferbane.  They had in fact received a response, direct or indirect, from Garda Judge:   the plaintiff had not been sighted in the Offaly area.  That is undenied either by the plaintiff or by the members or former members of the Garda Síochána who swore affidavits.

	I am therefore of the opinion that while there was an undoubted lapse of time in the present case it was not due to “unexplained dilatoriness”, to use the phrase employed in Martin v. Conroy [2002] 1 ILRM 461.  In that case, it was this unexplained dilatoriness “together with the inferred reality of a real and serious risk of an unfair trial” which amounted to exceptional circumstances.  I believe, on the basis of the authorities cited above, that neither open residence in Shannonbridge nor the fact that the plaintiff is the father of a child born since he absconded, amount to exceptional circumstances.  It is in my view surprising, bearing in mind the small population of Shannonbridge and its environs, that the plaintiff’s long period of “signing on” did not alert some member of the Garda Síochána to his presence in that area, but this cannot amount to establishing “that the requesting government is shown to have been inexcusably dilatory…”, to use the phrase of Lord Edmund-Davies in Kakis.  It should in fairness be noted that the signing on does not appear to have commenced until July 1993, almost three years after the Leeds Police inquiries were communicated to Ferbane.  

	Lapse of time is the principal point relied on by the plaintiff.  I can not attribute responsibility for it to the Leeds Police, on the facts as known to this Court. 

	I propose now to consider the other factors urged by the plaintiff as constituting, in themselves or together with the lapse of time, “other exceptional circumstances”.  Firstly, he says that he was led to believe by reason of the lapse of time that the authorities in England were not pursuing the matter.

	The plaintiff had taken deliberate steps to put himself outside jurisdiction of the English Police and Judicial authorities.  He had done this in October, 1990, the very month in which his alleged victim died.  While he gives no reason for having done so, the reason must relate to his perception of the seriousness of the possible consequences for him if he stood his trial.   The most obvious reason for his not being accosted by the authorities before he was is that those authorities did not know his whereabouts.  The applicant’s affidavit advances no basis on which he claims to have thought that the lack of contact from the authorities meant that they did not intend to pursue the matter.

	Secondly, the applicant claims that he will be prejudiced in his trial because his English solicitor has destroyed his file and because it is possible that potential favourable witnesses may no longer be available.  In my view the plaintiff has made no showing at all of a real risk of an unfair trial.  On the contrary, he has carefully avoided making any comment as to his attitude to the charge outstanding against him, the nature of his defence or the witnesses he might require to support that defence.  The plaintiff is perfectly entitled to be reticent on these points but his reticence means that he has failed to discharge the onus of proof which is certainly upon him.   I am very conscious indeed that a fourteen year interval between the alleged offence and the trial may have very serious consequences.  But these consequences are to be laid at the door of the plaintiff who by his own act prevented a trial taking place thirteen years ago.  In any event, the mere possibility of an unfair trial is insufficient:  what must be shown is a real risk, and demonstrating that is simply not consistent with the reticence which the plaintiff has maintained.

	Thirdly, the plaintiff says that the trial may be prejudiced by the television report by Roger Cooke, which was broadcast some 4 ½
years ago.  This report communicates that the plaintiff absconded before his trial and pointedly raises the question of why that was.  Most importantly, the portion of the programme which referred to the applicant very unfortunately contained an unqualified assertion by the interviewer that the applicant was indeed guilty of the offence with which he was charged.  

	It must be emphasised that publicity of this sort, and in particular an express assertion of the guilt of the person charged, is undesirable in the highest degree.  Considering that the whole point of the television programme was to castigate the English authorities for what the programme makers viewed as insufficient diligence in pursuing fugitive offenders, it is ironic that the programme itself, by asserting the guilt of this offender, itself became a factor suggesting that the trial should not occur.

	The cases of D. v. DPP [1994] 2 IR 465 and Z. v. DPP [1994] 2 IR 476, consider the circumstances in which a trial within this jurisdiction will be prohibited on the ground of prejudicial publicity.  Though the circumstances are not identical to the present case, where delivery for trial abroad is an issue, there are aspects of the judgments which suggest  the proper approach to the present contentions.  Firstly, the onus of proof would rest on the plaintiff who invokes the spectre of adverse publicity who must show a real risk arising from such publicity that he could not obtain a fair trial.  Z was a case of media saturation in which it was nonetheless held that a jury properly instructed as to their responsibilities could try the case fairly.  This is a case of a single publication, 4 ½ years ago in which there is ample scope for the “fade factor” to have played its role in lessening any prejudice.

	The judgment of Kelly J. in Quinlivan v. Conroy (No. 2) [2000] 3 IR 154 discusses authoritatively the provisions which exist in the United Kingdom to guard against a trial becoming unfair by reason of adverse publicity.  I agree with his conclusions on this subject and on the question of the “fade factor” of the effect of publicity over time.

	I would not, therefore, consider that the television programme constitutes an “other exceptional circumstance” which might lead to the conclusion that it would be unjust unfair or invidious to deliver the plaintiff for trial.  I reach this conclusion on the individual facts of the case.  This decision cannot properly be cited in any future case as providing a licence for media comment such as occurred in the present case.  Indeed, any such comment in a future case would be all the more objectionable by reason of having occurred after the Court has clearly expressed its attitude in relation to such comment.  A very unusual and significant part of this case – that it was the accused’s own act in absconding which invited the media attention – is unlikely to be often repeated.

Issues for the Court.
	It may be necessary to emphasise that, on the hearing of an application for relief under s.50, the Court is concerned to exercise the jurisdiction conferred by the Section, and not to exercise some general supervisory jurisdiction over the Garda Síochána or any other police force.  The Court has recently addressed this topic in Wayne Patrick Lynch v. The Attorney General and Ors. (Supreme Court unreported 24th July, 2003.)    There, the High Court made unappealed findings of grave misbehaviour on the part of a garda concerned to execute an English warrant.  He had offered to bury or lose the warrants in return for assistance in another case, and he had falsely denied this on oath before the High Court.  In the circumstances of the case, however, this did not lead to the grant of relief to Mr. Lynch on the basis that “To permit the Garda’s misdeeds to have this effect would be to put the agreement between nations at the mercy of any single member of the police force who, through malevolence stupidity or a failure to recognise the importance of observing elementary legal principles, committed an irregularity”.  It was stressed the approach taken in Lynch was based on the assumption that the Gardaí were under the effective control of their superiors who would take appropriate action, and that the position would be otherwise if this assumption were falsified.   

	In the present case there is of course no question of any positive misdeed on the part of any member of the Garda Síochána.  After a period of thirteen years it is perhaps understandable that memories will have faded, but disappointing for example, that no record exists of the inquiries undertaken by Garda Judge.  Moreover, we are very conscious of the fact of thirteen years is a long period of time, during which memories may decay (as this case demonstrates) and prejudice may accrue or even in some circumstances be presumed.  But the plaintiff here has put his case on an extremely narrow basis.  Assuming the lapse of time to be exceptional, he has in my view failed to demonstrate any other exceptional circumstance and wholly failed to show that it would be unjust oppressive or invidious to render him for trial in Leeds. 

Conclusion.
	I would therefore dismiss the appeal and affirm the order of the learned trial judge.